Evidence - Rule 804(B)(3) - Statement Against Interest

Lilly v. Virginia, 527 U.S. 116, 119 S.Ct. 1887 (1999).

The Supreme Court reversed this state court murder conviction on the grounds that the state was permitted to introduce the statement of a co-defendant that implicated the defendant. The co-defendant was not tried with the defendant (thus, this was not a Bruton situation) and he invoked his Fifth Amendment right not to testify. In his out-of-court statement, he admitted some participation in the crime spree, but implicated the defendant (his brother) in the murder. The state argued that this was admissible under the state exception to the hearsay rule for statements against the declarant's penal interest. The Supreme Court held that the statement implicating the defendant in the murder was not sufficiently against the declarant's penal interest to be admitted. The admission of this testimony violated the Confrontation Clause of the Sixth Amendment.

Williamson v. United States, 512 U.S. 594 (1994)

Only the actual inculpatory portions of an out-of-court statement “against penal interest” may be admitted in evidence, not the other portions of a narrative statement.

United States v. Ocasio-Ruiz, 779 F.3d 43 (1st Cir. 2015)

The defendant was charged with carjacking. He sought to introduce at trial the statement of another man, since deceased, that he made to his mother, that he was the sole perpetrator of the offense. The defendant argued that this statement of the deceased to his mother was a statement against interest that was corroborated by the fact that the statement was made to the declarant’s mother.

United States v. Hatfield, 591 F.3d 945 (7th Cir. 2010)

The trial court erred in excluding testimony that a third party admitted (in an out-of-court statement recorded in a police report) that he committed the crime that the defendant in this case was facing. There was no evidence that the confessor knew the defendant and there were circumstances corroborating the confessor’s admission. The out-of-court statement was obviously against the declarant’s penal interest and there were sufficient indications of the trustworthiness of the statement.

United States v. Rodriguez-Martinez, 480 F.3d 303 (5th Cir. 2007)

A drug purchaser’s statement to the police that the defendant was his supplier may have been against his interest, but it also violated the defendant’s Confrontation Clause rights and admitting the statement was reversible error.

Stallings v. Bobby, 464 F.3d 576 (6th Cir. 2006)

Allowing the state to introduce a co-conspirator’s statement that implicated the defendant violated the defendant’s Confrontation Clause rights.

United States v. Jones, 371 F.3d 363 (7th Cir. 2004)

The defendant’s co-codefendant confessed to the crime with which he was charged, but then became a fugitive prior to trial. The government offered the co-conspirator’s confession at trial, though all references to the defendant were redacted. The Seventh Circuit held that the statement should not have been admitted. First, because the declarant was not at trial, the statement was obviously only used against the defendant, thus, redacting the defendant’s name did not satisfy the Bruton concerns. Second, according to Crawford v. Washington, this statement could not be admitted without violating the defendant’s right of confrontation.

United States v. Chapman, 345 F.3d 630 (8th Cir. 2003)

A missing witness previously assisted the police in catching one of his drug customers. His statements did not qualify under Rule 804(b)(3). The witness, “by casting himself as a mere mule and serving up the repeat buyer, could reasonably assume that he would be minimizing his criminal liability.” Therefore, the statement was not sufficiently against his penal interest to satisfy the Confrontation Clause. The court also rejected the government’s theory that the statements were admissible to explain the officers’ conduct in pursuing the buyer (defendant).

Forn v. Hornung, 343 F.3d 990 (9th Cir. 2003)

The out of court statements of the accomplice / declarant did not qualify as statements against interest under the Lilly standard.

Hill v. Hofbauer, 337 F.3d 706 (6th Cir. 2003)

Following the decision in Lilly, the Sixth Circuit held that a statement by a co-conspirator, even if it incriminates the declarant, is inherently unreliable and inadmissible pursuant to the Confrontation Clause.

United States v. Price, 134 F.3d 340 (6th Cir. 1998) The trial court erred in excluding evidence offered by the defense regarding a co-conspirator's statements against penal interest. The declarant was unavailable (he was a fugitive at the time of trial). With regard to the condition that there are corroborating circumstances, the issue is whether there are circumstances that indicate the trustworthiness of the statement itself, not whether there are circumstances that corroborate the content of the declaration. Among circumstances that may corroborate a statement against penal interest are: (1) the statement is made after receiving Miranda warnings; (2) the declarant and the party offering the statement do not have a close relationship; (3) the absence of any indication that the statement was made in an effort to curry favor with law enforcement. The error in excluding this evidence was harmless.

Crespin v. New Mexico, 144 F.3d 641 (10th Cir. 1998)

Admitting the co-conspirator’s statement that implicated the defendant was erroneous. The state’s theory that the statement was “against the declarant’s penal interest” did not survive appellate habeas scrutiny. The Tenth Circuit held that the state courts failed to properly apply the “indicia of reliability” test. The court reiterated the “time-honored” principle that “a codefendant’s confession inculpating the accused is inherently unreliable.”

United States v. Castelan, 219 F.3d 690 (7th Cir. 2000)

Pursuant to Williamson v. United States, 512 U.S. 594 (1994), the trial court must evaluate a witness’s out-of-court statement line-by-line in determining whether it is admissible under Rule 804(b)(3). The fact that the statement, taken as a whole is incriminating is not sufficient to overcome the Confrontation Clause concerns. Here, the court failed to undertake this analysis and the fact that the police told the co-defendant that he could help himself by cooperating further reduced the reliability of the statement. Harmless error.

United States v. Barone, 114 F.3d 1284 (1st Cir. 1997)

At great length, the First Circuit reviews the law regarding the admissibility of statements against penal interest pursuant to Rule 804(b)(3), concluding, in the end, that the vast majority of evidence offered by the government was admissible.

United States v. Boyce, 849 F.2d 833 (3rd Cir. 1988)

A co-defendant was arrested and his subsequent statement was offered in evidence at trial under the statement against interest exception to the hearsay rule. The record, however, failed to reveal the circumstances surrounding the arrest and interrogation. It was equally plausible that the co-defendant was motivated by a desire to curry favor with the FBI agent. The statement was inadmissible under 804(b)(3).

United States v. Flores, 985 F.2d 770 (5th Cir. 1993)

Defendant’s co-defendant testified at the grand jury, implicating both himself and the defendant in the drug conspiracy. The government offered this hearsay against the defendant, relying on the “against penal interest” exception to the hearsay rule – 804(b)(3). Pursuant to Idaho v. Wright, corroborating evidence may not be considered in determining whether a statement may be admitted under the Confrontation Clause where, as here, the statement is presumed to be unreliable. The circumstantial guarantees of trustworthiness must exist in the circumstances of the statement itself. Mere corroboration is not itself sufficient to overcome the Confrontation Clause hurdle. Also, the “against penal interest exception,” though a “firmly rooted exception,” does not qualify all hearsay statements as inherently reliable. This is particularly true where, as here, the statement is not only against the penal interest of the speaker, but also against the penal interest of the party objecting to the admissibility of the statement.

United States v. Hazelett, 32 F.3d 1313 (8th Cir. 1994)

A woman was arrested on a bus and found to be in possession of cocaine. She agreed to cooperate and implicated herself (as the courier) and the defendant as the supplier. She disappeared before trial. The government sought to introduce her earlier statements under Rule 804(b)(3) – statements against her penal interest. An unavailable declarant’s lengthy narrative is not admissible under 804(b)(3) merely because some portion of the narrative subjects the declarant to criminal liability. Williamson v. United States, 114 S.Ct. 2431 (1994). The declarant’s statements which implicated the defendant were not sufficiently against the declarant’s penal interest to be admissible. This statement, which was made after the declarant was arrested in possession of a substantial quantity of cocaine, is a good example of a declarant possibly motivated by the very natural desire to curry favor from the arresting officers and the desire to alleviate culpability by implicating others. In short, pointing the finger at the defendant may well have been an effort to minimize culpability, the opposite motivation which is the basis for the 804(b)(3) exception to the hearsay rule.

United States v. Beydler, 120 F.3d 985 (9th Cir. 1997)

When the declarant’s out-of-court statement (made against his penal interest) is made during the course of the declarant’s effort to secure a deal, the statement will generally not be admissible under Rule 804(b)(3).

United States v. Paguio, 114 F.3d 928 (9th Cir. 1997)

The defendant was charged with bank fraud. His father made a statement to defendant’s attorney and paralegal that he was responsible for the crime. The father was a fugitive at the time of trial. The defendant sought to introduce the statement pursuant to Rule 804(b)(3). The trial court permitted the defense to offer part of the father’s statement (the part in which he inculpated himself), but not the part that exculpated his son, the defendant. This was reversible error. Unlike in Williamson, the portion of the statement being excluded was not self-exculpatory of the declarant. The excluded portion – exonerating the son – was simply another way of inculpating the declarant, and was thus admissible under Rule 804(b)(3).

United States v. Costa, 31 F.3d 1073 (11th Cir. 1994)

The government offered the confession of a co-defendant (who was not on trial with the defendant) which implicated both the defendant on trial, and the co-defendant, himself. The government relied on Rule 804(b)(3). The court reversed: even though the statement might appear to be against the declarant’s penal interest, the part of the statement implicating the defendant was not sufficiently against the declarant’s penal interest to be admissible under this theory. Under Bruton, such statements must be excluded. The declarant’s statement was made while he was in custody, and after he was told by the AUSA that if he did not provide substantial assistance, he would face life in prison.

United States v. Curbello, 940 F.2d 1503 (11th Cir. 1991)

The trial court failed to demonstrate that the declarant was “unavailable” thus justifying the use of his out-of-court statement against penal interest. The only proof of unavailability was the statement of the prosecutor that the declarant was in prison in the Bahamas. This is not sufficient to prove unavailability: The government must show that it could not procure the declarant’s attendance by process or other reasonable means. The government had to show that efforts were made to contact the Bahamian government about extradition or other means of procuring the witness’s attendance. The government failed to show that a deposition or letters rogatory were not practical.

United States v. Gabay, 923 F.2d 1536 (11th Cir. 1991)

Rule 804(b)(3) permits the introduction of an unavailable witness’s out-of-court statements if the statements were contrary to the penal interest of the declarant. Here, the statements were made by a person who was deceased at the time of trial. The statements amounted to a confession of complicity in the counterfeiting venture for which the defendant was being tried. The fact that the declarant had been immunized prior to making the prior statements did not change the result – the statements were still against the penal interest of the declarant.